Police v Lemalu [2015] WSSC 79 (20 August 2015)

THE SUPRME COURT OF SAMOA
Police v Lemalu [2015] WSSC 79

Case name:	Police v Lemalu
Citation:	[2015] WSSC 79
Decision date:	20 August 2015
Parties:	POLICE v SIONE LEMALU male of Matautu, Lefata (accused)
Hearing date(s):
File number(s):	S1821/15
Jurisdiction:	CRIMINAL
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Convicted and sentenced to 1 year and 4 months imprisonment on each of the two charges against him. Both sentences to be concurrent.
Representation:	L Sua-Mailo for prosecution S Wulf for accused
Catchwords:	Sexual conduct with a dependent family member – maximum penalty – early guilty plea – aggravating features – planning and premeditation – mitigating features – personal circumstances – starting point for sentence approach – convention on the right of a child – breach of trust – impact of offending – place of the offending- penalty by village council – sentence
Words and phrases:
Legislation cited:	Crimes Act 2013s.56(1)
Cases cited:	R v AM [2010] NZCA 114
	R v Hessell [2009] NZCA 250, paras [14], [22]-[23]
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

FILE NO: S1821/15

BETWEEN

P O L I C E
Prosecution

A N D

SIONE LEMALU male of Matautu, Lefaga.
Accused

Counsel:
L Sua-Mailo for prosecution
S Wulf for accused

Sentence: 20 August 2015

S E N T E N C E

The charges

1. The accused appears for sentence on two charges of sexual conduct with a dependent family member under 21 years, contrary to s.56(1) of the Crimes Act 2013, each of which carries a maximum penalty of 14 years imprisonment. To both charges, the accused pleaded guilty at the earliest opportunity.

Offending

2. As shown from the prosecution’s amended summary of facts confirmed by the accused, at the material times, the victim and the accused who is married to the victim’s maternal aunty were living in the same house with other members of their family. The accused was then 43 years old and the victim 15 years old.
3. On a Saturday morning between 1 January 2014 and 30 September 2014, when the victim and the accused were alone at home, the accused approached the victim and touched her breasts. The accused then led the victim into one of the bedrooms, laid her on a bed, removed all her clothes, laid on top of her, and had sexual intercourse with her. After sexual intercourse, the accused put on his clothes and left the bedroom.
4. Then around 2:00am on a Friday morning between 1 January 2014 and 30 September 2014, while the victim was asleep in her bedroom, the accused approached her and fondled her breasts, removed her clothes, and had sexual intercourse with her. After sexual intercourse, the accused put on his clothes and left the victim’s bedroom.
5. As a result of these encounters of sexual intercourse, the victim became pregnant and gave birth to the accused’s child. The matter was reported to the police and the accused was apprehended and interviewed by the police on 28 May 2015. When the charges were called for mention on 22 June 2015, the accused pleaded guilty.

The victim

6. Apart from what has already been said about the victim and the fact that she became pregnant and has given birth to the accused’s child, there is no victim report about the impact of the offending on the victim. The victim is now 16 years old.

The accused

7. As shown from the pre-sentence report, the accused had a good level of education having graduated with a certificate in automotive engineering from the Samoa Polytechnic. He was then employed in the Ministry of Agriculture and Fisheries in 1991 for one year. From 2003 – 2006 he was employed in a rental car company and then by a foreign mission in Apia. From 2009 up to now, he has been employed in the retail division of one of the commercial banks in Apia.
8. The accused is also a first offender. His wife told the probation service that the accused is a very responsible, hardworking, humble, and loving person in their family. He also provides financial support for their family.
9. The testimonial from the accused’s current employer, which is a commercial bank, shows that the accused is an honest employee who achieves the goals set for him every year. He has a mild and sociable personality which makes him loved by his fellow employees. He started as a driver for the bank in 2009 and then worked his way up until 2012 when he was appointed as a sales consultant which is his job with the bank up to now.
10. The testimonial from the pastor of the accused’s church shows that the accused is a humble, obedient, and respectful person who is strongly supportive of the development activities of the church. He is also a choir and youth leader in the church and is a lovable member of the congregation.
11. The testimonial from the pulenuu of the accused’s village shows the accused as a good and lovable person who is rendering good service to his family, his church, and his village.
12. Mr Wulf for the accused told the Court in his plea in mitigation that the accused is truly remorseful for what he did and has personally apologised to the victim. His family has also apologised to the victim’s family. The accused has also been penalised by his village council. This is confirmed by the pulenuu of the accused’s village in his testimonial. The penalty imposed by the village council consisted of 100 cases of canned fish, 100 loaves of bread, two large fine mats, and smaller fine mats (moegalafo).
13. Mr Wulf also said that sexual intercourse between the accused and the victim was consensual. This must be so otherwise the charges would have been sexual violation by rape.

The starting point for sentence approach

14. The starting point for sentence approach involves taking into consideration the aggravating and mitigating features relating to the offending in order to determine the starting point for sentence, and then making adjustments up or down to take into account the aggravating and mitigating features relating to the accused as offender. It is therefore important to bear in mind the distinction between the “offending” and the “offender”. The two terms do not mean the same thing.
15. The starting point for sentence is first to be determined by taking into account the aggravating features and any mitigating features relating to the offending. This defines the inherent “seriousness” or criminality of the offending.
16. Once the starting point for sentence has been determined, for example, 12 months or 2 years, an adjustment is then made upwards to take into account any aggravating features relating to the accused as offender. An example of such aggravating features is previous convictions. When that is done, a reduction or downward adjustment is made to take into account any mitigating features relating to the accused as offender other than co-operation with the prosecution and/or a guilty plea. After that, a further deduction is then made for any co-operation with the prosecution and/or guilty plea by the accused which are also mitigating features relating to the accused as offender. The outcome of this process is the end sentence to be imposed on the accused. The starting point for sentence approach is appropriate where the Court is mindful of imposing a custodial sentence.
17. To recapitulate, the starting point for sentence approach involves the following four steps:
    • Step 1 Take into consideration the aggravating and mitigating features relating to the offending in order to determine the starting point for sentence.
    • Step 2 Increase or adjust upwards the starting point for sentence to take into account any aggravating features relating to the accused as offender.
    • Step 3 Deduct or adjust downwards for any mitigating features relating to the accused as offender other than co-operation with the prosecution or a guilty plea.
    • Step 4 Make a further deduction or downward adjustment for any co-operation with the prosecution by the accused and then make a further deduction for any guilty plea by the accused. Co-operation with the prosecution and a guilty plea are also mitigating features relating to the accused as offender but they are only to be taken into account under Step 4. Examples of co-operation with the prosecution is where the accused is willing to give evidence for the prosecution in the trial of a co-accused or to assist the police with their investigation of an alleged crime.
18. The weight to be given to an aggravating or mitigating feature is a matter for the sentencing Judge. The outcome of the above process is the end sentence to be imposed on the accused.
19. It is to be noted, however, that in New Zealand the starting point approach is seen as involving three steps instead of four. That is because the second step involves taking into account both the aggravating as well as the mitigating features relating to the accused as offender. In my respectful view, it is preferable that the taking into account of any aggravating features relating to the accused as offender should be a separate step from taking into account any mitigating features relating to the accused as offender. This would avoid any possible confusion by taking into account at the same time both the aggravating and mitigating features relating to the accused. It also provides for more clarity.
20. In R v AM [2010] NZCA 114, the New Zealand Court of Appeal said at para [14]:
    • [14] Current sentencing practice is based around a methodology which was first explicitly and authoritatively explained in Taueki. Under Taueki, the sentencing judge’s first step is to identify a starting point sentence which appropriately reflects the intrinsic seriousness of the offending. This “starting point” sentence is, at the next step, adjusted up or down to reflect circumstances which are personal to the offender (including a plea of guilty if there has been one). More recently there has been something of a development of the Taueki methodology in cases where there have been guilty pleas or assistance to the authorities. It is now seen as best practice to arrive at a provisional sentence which reflects all factors other than the guilty plea and/or assistance to the authorities, and then, in a third step, discount that provisional sentence to allow for those factors. All of this is explained in R v Hessell [2009] NZCA 250, paras [14], [22]-[23].”

The aggravating features relating to the offending

(a) Breach of trust

21. This offending occurred within a familial relationship. The accused is the victim’s uncle and they were living with other family members in the same house as members of the same household. The victim was entitled to trust the accused as her uncle. The actions of the accused were a serious breach of that trust. This breach of trust is an aggravating feature relating to the offending.

(b) Vulnerability of victim

22. The accused and the victim were living in the same house and on the occasion of the first sexual intercourse were alone by themselves which made the victim particularly vulnerable. On the second occasion of sexual intercourse the victim was asleep in her room at night. The vulnerability of the victim on both occasions of sexual intercourse is another aggravating feature relating to the offending.

(c) Place of offending

23. This offending took place in the home of both the victim and the accused. The victim was entitled to feel safe and secure in her home. But that was not so. The place of this offending is also an aggravating feature relating to the offending.

(d) Age difference

24. At the material times, the victim was 15 years and the accused was 43 years. The age difference of 28 years between the victim and the accused is another aggravating feature relating to the offending.

(e) Impact of offending

25. As a result of this offending, the victim became pregnant and gave birth to the accused’s child. This will always be a reminder to the victim for the rest of her life of what the accused did to her. This is also an aggravating feature relating to the offending.

What is not an aggravating feature relating to the offending

(a) Convention on the Rights of a Child

26. The Convention on the Rights of a Child is not an aggravating feature relating to the offending. It had no part to play in the offending. The Convention is only a document which exists in the offices of the executive branch of Government. It had no involvement in the offending that took place in the home of the victim and the accused. The Court is aware of the Convention and bears it mind, but that does not make the Convention play a part in the offending as an aggravating feature.

(b) Planning and premeditation in this case

27. The prosecution submits that planning and premeditation is an aggravating feature relating to this offending. On the facts of this case, I am doubtful whether there was a sufficient degree of planning and premeditation, over and above the usual degree of premeditation involved in sexual offending, to justify it being described as an aggravating feature relating to the offending. There is no evidence that the accused groomed the victim, or took steps to get the victim alone, or gave the victim alcohol or drugs with a view to offending, or some other predatory behaviour.
28. In R v AM [2010] NZCA 114, the New Zealand Court of Appeal said at para [37]:
    • “The degree of planning and premeditation reflects criminality... Sexual violation of an impulsive nature, although still serious, will generally be less so than that involving grooming of a child or young person, taking steps to get a victim alone, giving the victim alcohol or drugs with a view to offending, and other predatory behaviour. As the SEU draft guidelines note, offenders who show predatory sexual behaviour may be more likely to offend in an opportunistic manner. They should not be treated as lacking premeditation”.

The mitigating features relating to the accused as offender

(a) Apologies

29. The accused has personally apologised to the victim and his family has also apologised to the victim’s family. This is a mitigating feature relating to the accused as offender.

(b) Previous good character

30. The accused is a first offender and had been a person of good character prior to the commission of these offences as shown from his character testimonials. This is another mitigating feature relating to the accused as offender.

(c) Personal circumstances

31. The accused is entitled to some credit by way of a mitigating feature relating to him as offender for his personal circumstances set out in the pre-sentence report.

(d) Penalty by village council

32. The hefty penalty imposed by the village council on the accused is punishment in itself and is another mitigating feature relating to the accused as offender.

(e) Guilty plea

33. The accused’s guilty plea at the earliest opportunity is also a mitigating feature relating to the accused as offender.

Discussion

34. Having regard to the aggravating features relating to the offending, I will take 3½ years as the starting point for sentence. I will deduct 1½ years for the mitigating features relating to the accused as offender except for the guilty plea. That decreases the starting point to 2 years. I will then further deduct 1/3 or 8 months for the accused’s guilty plea at the earliest opportunity. That leaves 1 year and 4 months.

Result

35. The accused is convicted and sentenced to 1 year and 4 months imprisonment on each of the two charges against him. Both sentences to be concurrent.
    

CHIEF JUSTICE